Why Do We Need Human Rights? (41): Our Interests or Our Autonomy?

Two competing answers to a fundamental question about rights are doing the rounds: why do we need rights anyway? There’s an interest theory of rights which gives one answer, and then there’s a will theory of rights which gives another, incompatible answer. (There are other theories but most of the discussion is between these two). Very, very simplistically, the answers are these:

  • Will theory (WT), otherwise known as choice theory, argues that the purpose of rights is to protect and foster individual autonomy. An individual who has rights is a small-scale sovereign. WT attempts to establish the validity of human rights based on the unique human capacity for freedom. Rights help to protect and realize this capacity. This implies that the rights holder has the moral power to waive or annul his or her rights. All rights are derived from the essential right of all human beings to be free.
  • Interest theory (IT) argues that the principal function of human rights is to protect and promote certain essential human interests. This is another way of saying that rights protect what is beneficial to individuals:

Necessary though insufficient for the holding of a legal right by X is that the duty correlative to the right, when actual, normatively protects some aspect of X’s situation that on balance is typically beneficial for a being like X. (source)

Both theories have appealing and somewhat less appealing features. One appealing aspect of WT is that it wants to offer equal freedom to all. People want things, face choices – good and bad – and need opportunities to do things. Rights offer the ability to make preferred choices and provide the opportunities to do things. The understanding that most rights are alienable is also positive, in my view.

However, more problematic – and some say fatal – is the fact that WT rules out the holding of rights by animals, dead people, future persons, infants, comatose people, severely mentally disabled people, senile people and fetuses. In WT, people only have rights when they are competent to claim rights, and members of the cited groups can’t typically claim rights. If they don’t have rights, we can do whatever we want to them. Not a good conclusion.

Personally, I think the most appealing feature of IT is that it more or less corresponds to my own value theory of rights (which I argued for here). Also not to be frowned upon is the fact that IT avoids the problem of the rights of non-autonomous beings.

One problem with IT is the vagueness of the term “interests”. What is an interest? Should it be the case that an individual understands an interest as an interest (in other words, should an interest be a felt interest)? Or is it enough that the interest is objectively a human interest? In the former case, IT replicates the problem of the comatose and others who can’t be said to understand their interests. In the latter case, we’ll quickly end up with paternalism and we’ll also have to enter the treacherous domain of human nature.

Another problem is that most versions of IT don’t define which specific interests we’re talking about, and which interests create rights. Consequently, IT also remains vague about the exact rights people have. In one sense, that may be positive. Rights have to evolve. But I think that the vagueness here is to be deplored.

Also, rights don’t only exist to benefit the rights holder. Your freedom of speech is in my interest as well (more on that here). Again, IT can’t deal with this very well.

To conclude, if we have to choose between IT and WT, I guess the problems faced by IT are less deep. The exclusion of large groups of beings in WT is very hard to solve. Compared to that, one can at least see some possible solutions to the problems raised by IT.

More posts in this series are here.

What is Democracy? (61): A Euphemism for the Rule of Some Over Others?

How can a system of majority rule be called the rule of the people? There are always winners and losers and the majority rules over the minority. Even democracy is therefore a system of coercion, domination and the separation between rulers and ruled. The majority coerces the minority so that it respects its decisions. The power to set rules that other people can be coerced to obey by threat of penalty is the power to control other people’s lives, and that’s morally questionable. Calling it a democracy doesn’t change the fundamental problem.

Hence, a real democracy seems to require a system of decision by unanimity. In any other system there are always people who do not decide and who do not have autonomy or freedom in the sense of control over their own lives. Is there a difference between being ruled by one person and being ruled by the majority? Not really I guess, just that in the latter case domination is harder to see.

However, unanimity is usually not feasible, and is probably undesirable as well. If anything, democracy promotes plurality. Unanimity, or better apparent and enforced unanimity, is more typical of authoritarianism and is therefore hardly a better route to freedom.

Perhaps we can solve this problem in the following way. In a democracy, there is a majority whose wishes are given priority at a certain moment, but only temporarily. And there is a minority whose wishes are temporarily rejected. The minority’s wishes can always be presented to the general public, even after a decision has been made. These wishes can be promoted and defended, and they can perhaps become a new and future will of the majority. The majority and minority are not fixed groups, and they differ over space as well as over time: for each issue or decision, the majorities and minorities are different. In a well-functioning democracy, no one is part of a permanent and crosscutting majority or minority.

These two attributes of majority rule – possibility to change the majority over time, and separate majority decisions for as many problems as possible – maximize the chances that every individual can fulfill as many of his or her desires as possible. Unanimity rule would seem to offer a 100% chance, but given that unanimity is not realistic, majority rule is the best we can get. It guarantees that as many people as possible can fulfill as many of their desires as possible, because everyone is in the majority for some decisions and even when they’re not they can become so in the future. The minority, the group of persons supposedly living under the rule of the majority, is not a homogenous or unchanging group. It always consists of other persons and this makes the yoke of the minority a bit easier to carry.

However, that is only true in a well-functioning democracy. Asymmetric power relations in non-ideal democracies can increase some groups’ chances of being in the majority. If they have a lot of money or good lobbyists, they can steer decisions towards their wishes. And that can bring back the specter of the rule of men over men. Furthermore, demographics can be such that certain ethnic or linguistic minorities are permanently relegated to the political minority, for instance when the majority ethnic group consistently votes as a block and against the interests of the minority. In that case, democracy will have to provide some form of political autonomy or federal self-rule to the minority.

Another way out of the problem of majority rule is to argue that all rights, including the right of a majority to decide political matters, imply the power to control the lives of others. My right to property gives me the right to exclude others from it; my right to free speech gives me the right to stop others from violating my freedom of speech, etc.

More posts in this series are here.

What is Freedom? (3): The Paradox of Self-Ownership: The Right to Sell Yourself Into Slavery

Self-ownership, or the property of your own person, is a metaphor for the right to exclusive control of your own body and life. It captures some important intuitions: for example, that you should have a right to end your life as they see fit, that no one should be enslaved and that you generally have a right to decide what to do with your own life. As such it supports the idea of personal autonomy. For some, it also supports the right to abortion and it invalidates taxation.

Others even believe that self-ownership implies a right to sell your own body and life, just as you have a right to sell your other property. If that’s the case, then you have a right to sell yourself into slavery.

However, if self-ownership is understood as merely a metaphor for autonomy then there can’t be a right to sell yourself into slavery. Autonomy, or any other value for that matter, can’t be made to include the seeds of its own destruction. In other words, autonomy can’t include the right to autonomously abdicate your autonomy. Take this quote from Mill:

The ground for thus limiting his power of voluntarily disposing of his own lot is apparent, and is very clearly seen in this extreme case. … [B]y selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He, therefore, defeats in his own case, the very purpose which is the justification of allowing him to dispose of himself. (source)

If you insist that values or rights should be made to include their own negation, you’ll end up in Absurdistan. Democracies, for example, should then include the possibility to vote democracy away. Freedom should include the freedom to create totalitarian government. Tolerance should include tolerance of intolerance and of the forces intent on destroying tolerance. I don’t think we want to go there.

So, autonomy must include certain limits if it’s not to collapse under its own weight. This means that it’s legitimate to deny the moral value of – and perhaps even to forbid – autonomous actions that forfeit autonomy. Just like democracy is limited and suppresses anti-democratic movements and votes, and just like tolerance is limited and excludes tolerance of intolerance.

More on self-ownership here.

The Ethics of Human Rights (47): What’s So Funny About Paternalism?

In general, those who promote human rights will not be tempted to engage in paternalistic policies. That’s because human rights are about protecting people against each other, not about protecting people against themselves. And one of the foundations of human rights is the moral value of personal autonomy: people have a right to organize their lives according to their own plans and reasons, free from the influence and manipulation of others, even if others believe they are mistaken or self-destructive. Personal autonomy in this sense of the word is the basis of rights such as the right to privacy, property, political participation etc.

So, paternalism can be seen as detrimental to human rights. On the other hand, all societies are to some extent paternalistic, with the apparent consent of all. So what’s the deal? Let’s go through this topic in a systematic way, starting with some definitions, typologies and proposed justifications of paternalism, in order to end up with a clearer vision about paternalism’s temptations, dangers and limits.

Definition of paternalism

Paternalism is

  • interference
  • usually by the government
  • with an agent’s strictly self-regarding actions
  • and against the will of the agent.

It’s the use of coercion, force or incentives, against the initial will of the agent, with the purpose of imposing or preventing a certain type of action or lifestyle that has, respectively, positive or negative consequences for the agent and that does not harm or benefit a third party.

The purpose of paternalism is therefore to make the agent who is the object of paternalistic force, better off. She’s better off because she is forced, by the paternalist, to do good things to herself or to abstain from doing harm to herself.

Types of paternalism

This definition allows us to distinguish two types of paternalism: positive and negative (these qualifiers do not imply value judgments):

  • positive paternalism means forcing people to benefit themselves
  • negative paternalism means forcing people not to harm themselves.

The latter is much more common, I believe. Examples are anti-drug legislation, laws forcing people to wear seat belts or crash helmets etc. An example of the former are laws requiring people to contribute to a pension fund (although that case may not be strictly self-regarding since part of the motivation for such laws is the protection, not only of the future pensioner, but of his or her descendants or society in general).

Paternalism should therefore be distinguished from other types of coercion that aim at preventing people from harming others or forcing people to benefit others (such as laws against murder or laws imposing taxation respectively). Such non-paternalistic types of coercion focus on other-regarding consequences, whereas paternalistic coercion focuses on self-regarding consequences. Paternalism wants to limit the harm people’s actual or possible voluntary actions can do to themselves, and maximize the benefits that people’s possible but not voluntarily chosen actions can produce for themselves.

Paternalists are therefore “do-gooders” who want to maximize people’s utility, benefits, happiness, wellbeing etc. and who believe that this requires more than mutual protection.

(Other typologies of paternalism are, of course, possible: a soft form of paternalism would not intervene if people consciously and with full knowledge harm themselves, and only when self-harm results from lack of information; or would only intervene using incentives or “nudges” rather than coercion; hard paternalism would discount knowledge and intervene anyway; paternalism may be limited to the means people choose for their ends, or may also include these ends etc.).

Justifications of paternalism

Paternalists offer different reasons why they think that people, in some cases, should be prevented from engaging or forced to engage in certain actions.

  • As stated a moment ago, there may be a lack of knowledge on the part of the agent forcing the agent to unwittingly harm herself or fail to benefit herself. And this can be a lack of knowledge of different kinds:
    • First, the agent may not be aware of the harmful self-regarding consequences of a chosen or intended action, or may not be aware of the beneficial self-regarding consequences of an unchosen and unwanted action. In such cases, there are two possibilities. Either the simple delivery of information regarding the consequences – for example through education or communication – is enough to convince the agent to avoid harmful action or to choose beneficial action, and then no paternalistic action is necessary. Or this is not enough and paternalistic action is necessary. An example of the latter can be marijuana: according to some paternalists, the consequences of marijuana use are harmful, but this “information” doesn’t seem to register with users.
    • The absence of knowledge may be a deeper problem. The agent may not be aware of her true interests. Example: a terminally ill patient who wants to die may not be aware that her true interest – according to some – is respecting God’s will and God’s rules against suicide.
  • In many cases, people justify paternalism not because there’s a lack of knowledge, but because there’s a lack of “character” on the part of the agent. The agent may know very well what is and is not in her interest and what actions have beneficial or harmful consequences, but she just can’t bring herself to engage in or avoid those actions. There’s clarity about her interests and about consequences, but not the will, the courage, perseverance etc. to act correctly.

Most cases of paternalism, I guess, are of the first kind, where it is assumed that there’s a lack of continuous knowledge and a lack of conscious and lasting awareness of the consequences of certain actions, and that someone else, e.g. the state, knows better.

Hence, paternalism deserves its name. Paternalists assume – much like Plato – that society is divided into two groups of people, the “fathers” and the “children”, those who know better and are more rational, and those who don’t know and can’t be counted on to take their lives into their own hands. However, paternalism goes beyond the father-child metaphor because it believes that the “children” will never fully grow up: knowledge about consequences acquired through information and education, knowledge about which actions are or are not in the best interests of people, or knowledge about how people can act to best serve their true interests will often not be enough to act in a certain way. Apart from knowledge, character can be lacking, and that’s a fault that is much more difficult to correct without continuous paternalistic force.

The temptation of paternalism

So, all that sounds pretty awful, and yet all or most societies engage in some kind of paternalism without much public opposition. The examples given above are quite common. And indeed, some forms of paternalism are quite harmless and difficult to avoid. John Stuart Mill cites the case of a bridge that is about to collapse. The circumstances are such that only engineers are in a position to know this. Regular drivers don’t and can’t know the consequences of their actions – in this case driving across the bridge – and should therefore be prevented from acting by those who know better. This isn’t usually called paternalism, but there doesn’t seem to be a clear difference between this case and real cases of paternalism, such as laws forcing people to wear crash helmets (assuming that the reason why people don’t wear helmets is an insufficient awareness of the possible consequences), or moral rules dictating that we should try to convince our friends not to commit suicide if they are so inclined.

So, paternalism is there to stay. I don’t think there are many “hard anti-paternalists” around. Hence, as is often the case on this blog, we are faced with value pluralism and two contradicting values: in some cases it’s obviously good to protect people against themselves, but at the same time it is generally correct to respect people’s autonomy, their self-determination and their right to make their own decisions and to live according to their own reasons and motives, free from external forces.

Where’s the trade-off? I would say that the burden of proof is on those wishing to limit people’s autonomy, given the general importance of autonomy. Their case can made stronger when, for example, there’s absolutely no doubt that a certain course of action will produce serious harm to the agent. Otherwise the case for paternalistic coercion is less strong and the best we can do is simply warn people of the possible consequences. Their case can also be made stronger when medical opinion about an agent’s neurological or psychological disorders is unanimous.

The dangers of paternalism

The burden of proof is on paternalists because of the risks inherent in paternalism. We also tend to overestimate the effectiveness of paternalism. Generally, individuals are the best judges of their own needs and wants and of the means to realize them. It’s not obvious that a paternalistic class of “fathers” can have better knowledge, given the vast number of people, options and risks involved. And even if individuals make mistakes, the harm done by forcing them into a system in which they are treated like children may be greater than the harm they do to themselves when left alone. Most people value the freedom to decide for themselves and the value of this freedom can sometimes compensate the cost of self-inflicted harm. It’s also likely that mistakes make people better judges.

Does that mean that people should have the freedom to damn themselves? In most cases, yes, if that’s someone’s free and voluntary choice, made in the light of all the information available and accessible to her.

What is Freedom? (1): Three Kinds of Freedom

People usually talk about two kinds of freedom, negative and positive freedom. This common framing of the discussion about freedom is a result of the pervasive influence of Isaiah Berlin. However, this influence can be inhibiting in the sense that it can discourage other ways of thinking about freedom. Let me propose one other way.

We can, for instance, argue that there are not two but three kinds of freedom. Take the case of a business man being unfaithful to his wife. He tells her he’s going on a business trip but he’s meeting his lover instead. On his way to her, he’s not hindered in any way on his trip. There are no impediments or obstacles to overcome. His wife doesn’t try to stop him since she’s not aware of the affair. He takes the plane to see his lover and the airline cooperates in an unusually efficient way, security checks are cleared without any problems etc.

So the business man is free in the first sense of the word: freedom from external impediments. Let’s call this FREEDOM 1. It’s, in the tradition of Berlin, a negative kind of freedom.

However, the business man, while on his trip, is torn by guilt. Part of him tells him to stop and go back home. He knows that’s the best thing to do. But another part of him is driven by sexual desire and passion. The rational part wants him to be free of sexual desires because it knows that they may destroy everything that is dear to him.

So the business man isn’t free in this second sense of the word: freedom from internal impediments. He’s not free, not because of the presence of outside control, but because of the absence of self-control. Let’s call this FREEDOM 2. It’s also, obviously, a negative form of freedom in the sense that it requires the absence of internal impediments to a preferred action. (Berlin would not call this a negative freedom, but this post isn’t about Berlin, so let’s skip that).

We can also define this freedom 2 by way of the concept of “second-order desires” (following Harry Frankfurt). You are free if you can exercise self-control or self-mastery, and you can if you are able to act on your second-order desires. In our example, the businessman is free to have sex with his lover – no one forces him to have sex with her or to not have sex with her (this is freedom 1) – but he’s not free in the sense that he succeeds in acting on his second-order desire to remain faithful to his wife.

Freedom 1 is essentially a political concept, and receives most attention in political discourse. It’s the basis of concepts such a limited government, rule of law etc. Freedom 2 is usually part of discussions about psychology, personal morality and some forms of religion (such as Buddhism, which teaches that we should rid ourselves from desires). It also features in criminal justice (to what extent is a person criminally responsible for his or her acts, and to what extent is that person driven by passions, desires etc.). For this reason, freedom 2 can be likened or perhaps even equated to the concept of free will.

Freedom 2, although not political, can be reinterpreted in a political sense. Personal self-control and self-government – with the rational part of the individual taking control over the irrational and self-destructive part – can be seen as the starting point of a certain form of political freedom. Self-government is then translated from an individual notion into a collective one. If an individual wants to exercise self-government, he or she may also want to do that together with others. A society takes the model of individual self-control and uses it to exercise collective control over common matters.

Let’s call this FREEDOM 3: you’re free if, as a member of a community, you participate equally in the government of common affairs. This freedom is autonomy and democracy. One could call it a negative freedom as well, in the sense that a community, in order to govern itself, should be free from the rule of external forces (a dictator, a ruling class etc.). But even when those external forces are absent a community still needs to act together in order to govern itself. In that way, freedom 3 is not similar to freedom 2, and therefore it makes much more sense to call it a positive freedom: not merely a freedom from something, but a freedom to control a common destiny, a freedom to make your own rules and laws. (You could argue that freedom 2 is also positive in this sense, but it is much more negative than freedom 3 in other ways. And anyway I want to go beyond the positive-negative distinction here, so let’s drop that).

Freedom 3 is autonomy and democracy because it allows a community to take control of its common life. The problem with freedom 3, as already argued by Berlin, is that it can easily spill over in paternalism and become unfreedom. Rather than a collective acting together in a democratic spirit in order to govern their common affairs, we have a split in the collective: some use the split inside an individual between the rational part that tries to govern the irrational part and achieve freedom in this way (i.e. freedom 2), as a metaphor justifying a social distinction between more and less rational individuals. The former know best what is in the rational interest of the latter, and start to force the latter to act “rationally”, whatever that means (e.g. avoid adultery or compulsive gambling, live according to the communist worldview etc.). By forcing the irrational to act rationally, the paternalists make the irrational free, just like an individual who forces her irrational part to act rationally thereby makes herself free (freedom 2).

Coercively forcing an adulterer to mend his ways makes him free because mending his ways is presumed to be what he really wants (his second-order desire). So people are coerced for their own good, a good that they themselves are perhaps too blind to see.

This criticism was forcefully described by Berlin, and it remains very useful. However, I don’t think it necessarily discredits freedom 3. On the contrary, paternalism is a deviation from freedom 3, not its logical conclusion. Freedom 3 can avoid the pitfall of paternalism as long as it focuses on the mode of formation of desires rather than on their content. (See John Christman for a more elaborate version of this argument).

Freedom 3 remains important, like the other two types.

  • Freedom 1 is important because people want to be able to do what they want with a minimum of external impediments.
  • Freedom 2 is important because people often want to be able to decide rationally what they want, rather than instinctively. And rationally here means a thinking and reasonable assessment of the available options, which in turn means that you’re not forced into an option by your passions (or by your government, tradition, family etc. in which case we’re back in freedom 1).
  • And freedom 3 is important because people want to be autonomous and want to shape their common life. They don’t want their common lives dominated by a ruler or a ruling class.

If all three types of freedom are important, then none of them is sufficient by itself. Freedom 1 leaves the individual at the mercy of internal impediments and assumes – incorrectly – that the prior fixation of the individual’s volition is unproblematic. Freedom 2 shows that it is problematic. But it’s not only problematic because of the possible effect of passions; see here and here for some other reasons why the fixation of volition requires more than simply the absence of overbearing passions.

People do not simply want unimpeded action. They also want to reflect on what it is that they want. Freedom 1 is also insufficient for another reason. External impediments are often defined in a very limited way: to some who adopt freedom 1, only impediments intentionally produced by fellow human beings count, which means that unintentional impediments such as economic forces or non-human or natural impediments such as a handicap do not make people unfree (they merely make them “unable” to do something). That seems to me very restrictive. What difference does it make that my freedom of movement is impeded by an authoritarian government rather than by my poverty or disability?

Freedom 1 is insufficient because it can’t produce freedom 2, but also because it can’t produce freedom 3. It can’t be, by itself, the basis of democratic government. It’s perfectly compatible with some forms of limited dictatorship, on the condition that this dictatorship is relatively non-interfering. However, one could argue that a democracy – freedom 3 – is the best way to protect freedom 1 since a democracy protects human rights, and human rights limit external impediments.

Freedom 1 is insufficient, but so is freedom 2. Freedom 2 – the absence of internal impediments – can’t possibly produce freedom 1. On the contrary, it’s often a reaction to the absence of freedom 1. When faced with numerous external impediments, it can be reasonable to retreat into yourself and cut back your desires (like a Buddhist). The other option, going against the external impediments that block your desires, can be very costly, especially when the impediments are caused by your dictatorial government.

Freedom 3 as well is insufficient, even though it promotes freedom 1. After all, it doesn’t necessarily promote freedom 1, especially not for democratic minorities. And it’s completely unable to promote freedom 2.

The Ethics of Human Rights (25): Free Organ Trade and the Commodification of the Body

The case for allowing free organ trade seems like a no-brainer. Many countries, including the U.S., now forbid the sale and purchase of most organs, and, as a consequence, sick people die because of organ shortages, and poor people stay poor because they can’t “monetize” their organs. Poor people suffer a “double injustice”:

[We say] to a poor person: “You can’t have what most other people have and we are not going to let you do what you want to have those things”. (source, source)

However, when organs are freely tradable, many extremely poor people, especially those struggling to survive, will be tempted and even forced to sells parts of their bodies. Moreover, the rich will be able to benefit disproportionately from the market because prices will be high, given that demand will outstrip supply in an ageing society. The most obvious means to balance supply and demand, and to force down prices and allow the less than wealthy patients to participate in and benefit from the market, is to create a global market without trade restrictions, an organ-GATT if you want. This will bring in the masses of poor people from Africa and Asia, pushing up supply of organs and hence bringing down prices. This will supposedly benefit both the less than wealthy patients and the very poor donors. The latter will benefit even with prices for organs falling because of increased supply, because they start at extremely low levels of income. Even the sale of a cheap kidney can mean years of income for them.

The problem with this global market is that organ extraction will take place in sub-optimal medical conditions, creating risks for donors (if you can still call them that), also in the case of renewable tissue donation. Paradoxically, the poor are driven to risk their lives in the process of saving their lives. Even in the best healthcare systems in the world, organ extraction is often very risky. In the U.S., the extraction of a section of the liver, for example, carries a risk to the donor’s life of almost 1 percent (source). That’s not negligible. I doubt anyone would cross a street if that were the odds of getting hit by a car.

I’m convinced that an opt-out regulation for cadaveric donors (meaning that everyone’s a donor after death unless an explicit opt-out), combined with non-financial encouragement of voluntary pre-death donation, is the best way to solve the organ shortage problem. A free organ market will obviously also solve the organ shortage problem, but will create new problems instead.

The distinction between renewable tissue such as bone marrow, and non-renewable organs such as kidneys, eyes, etc. is a relevant one. If the donation of renewable tissue can take place in medically safe conditions, I can’t see a problem with being allowed to trade, on the condition that poor patients have the same opportunity and power to buy as rich ones (and that’s a pretty big “if”). The needs of the sick or disabled who risk dying or suffering because of a lack of available organ, clearly outweigh any remaining concerns.

One of those remaining concerns is the problem of the commodification of the body. Organ trade is obviously commodification, and commodification is dehumanization. I don’t want to imply that organ trade liberalization necessarily results in “organ farms”, dystopian places where people are “cultivated” solely for the harvesting of their organs – although the Chinese criminal justice and capital punishment system for instance comes awfully close. (I sometimes wonder if deterrent and punishment is the real goal of executions in China). But people can commodify and dehumanize themselves. And although we should normally respect people’s self-regarding choices, what looks like a choice may not always be a true choices.

The logic of economics tends to overtake all other domains of life, even those where it doesn’t belong and can do serious harm. Why is it so evident to so many that body parts are something that it supposed to be tradable? Even the most outspoken proponents of organ trade draw the line somewhere: they won’t allow people to sell parts of their brains, I guess, or their children and wives, or the parts of aborted fetuses (perhaps fetuses specially conceived and “harvested” for their parts), not even if this would fill a great social need. And yet they accept as natural that non-vital body parts should be tradable and seem to forget that irreplaceable body parts form our body and that we can hardly exist without our body. If we allow total freedom of organ trade, we will have to accept the case in which a poor father decides to sell off every single one of his organs for the survival of his family. After all, he is the master of his own body, he has a right to self-determination, and the government has no right to limit what masters of their own bodies should be allowed to do with it. If you don’t accept the legitimacy of this extreme case, you accept limitations on the freedom to trade organs. Since most opponents of organ trade also accept certain types of trade – e.g. renewable organs such as bone marrow and skin – the disagreement isn’t a principled one but one about degree.

Underlying the argument in favor of organ trade is the fiction of a market populated by free, equal and self-determining individuals who make free and rational economic decisions and agreements on what to sell and buy, free from government interference. The reality is of course that organ trade isn’t an expression of self-determination or autonomy but rather of the absence of it. And that organ trade, just like a lot of other trade, is radically asymmetrical: some are forced to sell in order to survive, especially if the price and hence the reward is very high, as it will be relatively speaking for the poor. And others will sell without rationally examining the benefits for or risks to their interests (absence of informed consent). It’s beyond my powers of comprehension that all this can be denied:

It’s true that I don’t find any of the arguments about the coercive effects of money on peoples’ decisions particularly compelling.  Megan McArdle (source)

Any potential paid organ donor is always free to decline the transaction, and is left no worse off than before. What next, will you tell me that I “coerced” Apple into sending me a Macbook? (source)

This seems to me to be more correct, or at least less outrageous:

Talk of individual rights and autonomy is hollow if those with no options must “choose” to sell their organs to purchase life’s basic necessities. … Choice requires information, options and some degree of freedom. (source)

Of course, some would say: if someone is forced by poverty to sell her organs, would you stop her and make her worse off by imposing legal restrictions on her autonomy and “reducing her resources”? That’s again the myth that markets always make things better. What if she does get some money, has a better life in the short run, but gets sick because of the operation (or do we also assume the myth of perfect healthcare for the world’s poor?) or because of the lack of an organ? Who would make her worse off? The one allowing her to sell, or the one stopping her? And anyway, there are better ways to protect the poor than to allow them to harvest their organs.

So, if we’re afraid that free organ trade might be exploitative for the poor, why not allow free trade but exclude the poor from selling? Because the poor will be, in general, the only ones tempted to sell. A wealthy person has no incentive to sell organs. Hence a free trade system restricted in this way will not solve the shortage problem, the main concern of proponents of free trade.

I’ve stated before that government interference can promote rather than restrict freedom. In the case of organ trade and donation, two specific types of interference can help:

  • Restricting the freedom to trade non-renewable organs, as well as renewable organs in circumstances in which extraction poses a health risk to donors, will protect the freedom of the poor. Not their freedom to sell organs obviously – which isn’t freedom for them anyway but compulsion – but the freedom to live a healthy live.
  • Imposing default cadaveric donation with an opt-out clause will protect the freedom to live a healthy live of patients in need of replacement organs. Of course, if it’s the case that for some organs cadaveric donation isn’t possible medically, I’m willing to accept an exception.

How about allowing people to sell their organs after death? This would evidently remove the health risks for donors. It could be considered a kind of life insurance for the deceased’s family. That would indeed remove all the concerns from the donor side. (The counter-argument that such a system would encourage families to kill their members for the “insurance money” seems a bit weak, and just as weak as the similar counter-argument against generalized organ trade liberalization, namely that people would murder in order to sell organs; I guess they already do).

But assume that we would allow free post-mortem trade: what would happen with the organs? They would be sold of course, but to whom? The most wealthy first, and hence we still have our problem on the beneficiary side: wealth yields better health. Of course, that’s already the case in healthcare in general: rich people also have better dental care etc. But do we want to add to the existing injustice by allowing wealth to determine who gets an organ?

If we allow limited organ trade of deceased’s organs, we’ll have to do something on the beneficiary side in order to neutralize the effects of wealth. A lottery system could be an option. Or subsidies for the poor, or price caps etc.

The Compatibility of Freedom and Equality (4): Freedom as Autonomy

Limits on freedom can equalize freedom. If my freedom is limited by yours, then our freedom is roughly the same. If I’m stronger than you, then a limit on my freedom makes it impossible for me to use my freedom to the detriment of yours. However, the problem of freedom and equality isn’t solved by limiting freedom. Notably the freedom of the poor and the freedom of those who, for one reason or another, don’t have a reasonable set of resources and alternative options to choose from, are still very unequal kinds of freedom. Limiting the freedom of others doesn’t help these people.

The ability to do as you want, limited by those restrictions imposed by the state necessary to ensure that the freedom of one doesn’t harm the freedom of another, does to some extent equalize freedom, but not the freedom of the poor and the freedom of those with a limited set of choices. Another problem is that it is essentially an anti-political freedom. The state is not a place of freedom; the state is a set of institutions which limit freedom.

However, it is my view that the state can be a place of freedom if we understand freedom in another way. Democratic political participation in the decisions of the state (especially on a local level) can be a source of freedom; freedom not necessarily in the sense of the ability to do as you want, but freedom in the sense of autonomy.

Autonomy in this context must be understood as the ability of a group of people, living together, to participate equally in deliberations, and to come to an agreement (by majority vote for instance) on certain matters that shape their living together. It is a more communal and less individualistic notion than the ability to do as you like, since it requires political self-government through democratic participation. It is also closely related to equality since the right to participation is an equal right and the adequate functioning of the decision-taking process requires equal attention to all arguments and alternatives.

Autonomy does not result from the isolated exercise of an individual will outside of state control.  Similar to freedom as self-development – see the previous post in this series – autonomy is mediated through life in a communityFreedom as self-development means that you can only do as you like when you know about the options and when the options appear in public debates, in education and in other circumstance that require a community. Freedom as autonomy profits from the same kind of debate. The advantage of debate in this case is not the clarification and expansion of choice as a precondition of real freedom of choice, but a better decision on things that are common to a group of people.

Autonomy is not a freedom outside of the state. It is necessarily a part of it and cannot survive without it. Autonomy is a kind of self-government. It’s a community that determines the social conditions in which it lives. People usually engage in self-government within some form of state institutions, local or even national. By determining the structures, laws and rules which govern their lives, people govern themselves. So we see that freedom and the state are not necessarily mutually exclusive.

Why Do We Need Human Rights? (8): The Harm Principle and the Freedom to Damn Yourself

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. John Stuart Mill

This is the so-called “harm principle“, for which Mill has become famous. In other words, people have the right to “damn themselves”, as long as they don’t hurt others in the process. If being an alcoholic or drug addict is part of a person’s vision of the good life, and if it doesn’t make him beat his wife or children, steal from others etc., then no government should intervene.

Obviously, this is limited to people who act rationally and are sane. Who, in other words, know the consequences of their actions, and then primarily the consequences for themselves. In some cases it must be possible to ignore someone’s desires for the sake of his or her own well-being. Some people have to be coerced for their own good because they fail to understand and to pursue their good or their interest autonomously. I’m thinking of children for example. No one would sincerely believe that we would hurt their freedom if we allowed them to engage in unsafe sex or to abandon their studies. They cannot assess the consequences of their actions and the harm they inflict on themselves.

In general, however, we should allow people to decide for themselves, to determine their own way of life and their own interests, as long as their choices don’t impact other people. We should do so even if we believe that the people in question have chosen a wrong, inferior or offensive way of life and harm themselves as a consequence of the way in which they understand their interests.

We can, of course, advise people and try to convince them, but we should be very careful if we want to impose a way of life on people, no matter how reasonable and beneficial this way of life seems to us. What is best for me is not necessarily best for everybody. Most people value the possibility to decide for themselves. It is much more dangerous to enact laws that only deal with people’s own lives than it is to enact laws that deal with social relations.

Even if the state can encourage or force people to pursue the most valuable ways of life, it cannot get people to pursue them for the right reasons. Someone who changes their lifestyle in order to avoid state punishment, or to gain state subsidies, is not guided by an understanding of the genuine value of the new activity. … We can coerce someone into going to church but we will not make her life better that way. It will not work, even if the coerced person is mistaken in her belief that praying to God is a waste of time, because a valuable life has to be led from the inside. A perfectionist policy is self-defeating. It may succeed in getting people to pursue valuable activities, but is does so under conditions in which the activities cease to have value for the individuals involved. If I do not see the point of an activity, then I will gain nothing from it. Hence paternalism creates the very sort of pointless activity that it was designed to prevent. We have to lead our life from the inside, in accordance with our beliefs about what gives value to life. Will Kymlicka

That is why we can only propose the “good way of life” (if we have an idea of what it is) and argue for it (and we need democracy and human rights to do that). Except in very exceptional cases, we should not impose this way of life and we should accept other ways of life, not because these ways of life are better, but because they are other people’s autonomous choices. The good way of life should be led from the inside. It should be a choice, a conviction, not something that is imposed from the outside. If your life is not your choice, it can never be good.

Cultural Rights (6): Self-Determination and Ethnic Cleansing

Self-determination is the essence of nationalism. A nationalist believes that a people or a nation can only have an autonomous and authentic existence, according to their own traditions, language, values and norms, in a state of their own. He often sees himself as a force for democracy. Self-determination, the national liberation of a nation that is captured in an alien state and that has to follow the decision of an external power, is indeed part of the struggle for democracy.

However, problems can arise from the desire to have a perfect match between state and nation. If every nation should have its state, then every state should comprise only one nation. A multicultural nation can never be legitimate according to nationalism, because in such a state it is inevitable that some nations or peoples are ruled by others and hence do not have an authentic and autonomous existence.

The problem that nationalism misses is that its policies lead to a homogeneous society and that diversity and multiculturalism can be attractive. Most problems of multiculturalism – a lack of integration, conflicts between communities, one group dominating another – can be solved by democracy (by tolerance, respect for religious freedom and individual rights, non-discrimination, institutional reforms, local autonomy etc.).

Nationalism solves the problems of multiculturalism by destroying it. It’s a kind of intellectual laziness to go immediately for the most extreme solutions. The only way to have homogeneous territories in our multicultural and melting pot world is the use of force. Homogenization often requires violent separation, civil war (because of the violent reaction of states that want to keep their territory intact), centrifugal forces (because of a lack of clarity: which group is a “nation” and has therefore a right to its own state?), forced relocation of members of other nations – also called “ethnic cleansing”, a method often used when there is no clear territorial separation of nations within a state – and, if really necessary, genocide.

If members of another nation have the misfortune of inhabiting parts of a territory that is claimed by the nationalist nation as the soil of its future state, and if these members do not leave the territory, give up their possession and abandon their graves voluntarily, then nationalism requires the elimination of these people. As long as they are present, the state will not be the representative of one nation. Democracy will require the representation of all nationalities and that is not the optimal situation for nationalists because it means that every nation is not able to rule itself. This is obviously a distorted and dangerous view on democracy.

Why Do We Need Human Rights? (5): Property Rights

Private property often does not have a good press. It’s unequal distribution has often been criticized. However, there is a recognized human right to private property (or, more specifically, the right to legal protection of private property and the right to use it freely) and this right is important for different reasons.

First of all, private property is a means to protect of the private space. Without private property, without your own house or your own place in the world, and without your own intimate and personal things, it is obviously more difficult to have a private life. The four walls of your private house protect you against the public.

Without private property, there is no private world (another example of the indivisibility and interdependence of human rights).

Just as there is no light without darkness, there is nothing common to all people and no public space without private property. So private property protects publicity, commonality etc. Independence, self-reliance, autonomy, and therefore, also freedom, are important values, and these values rely heavily on private property.

Private property is also important for the creation and maintenance of relationships. You have your own house and your own place in the world, but not in the world in general. You live in a particular world, in a very concrete social context of friends, enemies, neighbors and other types of relationships. A place in the world is always a place in a particular community, even if you have to transcend this community now and again.

Furthermore, property is an important tool in the creative design of your personality, especially, but not exclusively, when you are an artist.

Finally, it is obvious that without private property there can be no help or generosity. Generosity and the absence of egoism are important for the preservation of a community.

The right to private property, and in particular, the right to your own house, is linked to the freedom to choose a residence, which again is linked to the freedom of movement (again another example of the indivisibility of human rights).

The right to private property is, just as most of the other human rights, a limited right. There can and should be redistribution of private property from the rich to the poor, if other human rights of the poor suffer as a consequence of insufficient private property (for example, the economic rights of the poor). Taxation and expropriation, however, should be used carefully, in view of the numerous important functions of private property. The more property a state acquires, the weaker the citizen becomes. Weaker not only compared to the state, but also compared to fellow citizens. His fellow citizens will find themselves in a position whereby they can control and intervene in his weakened private space.

You also own your own body. Your body is part of your private property. It is something that is yours; it is the thing par excellence that is your own. It is not common to several people and it cannot be given away. It cannot even be shared or communicated. It is the most private thing there is. Owning your body means that you are the master of it. Other people have no say in the use of your body; they should not use it, hurt it or force you to use it in a certain way. This underpins the security rights such as the right to life, the right to bodily integrity, and the prohibition of torture and slavery. It also implies the right to self-determination, and therefore, the right to die. You carry prime responsibility over your own body and life.

The property of your body can justify private property of material goods. The power of your body and your labor is incorporated in the goods you produce. By working on an object, you mix your labor with the object. If someone wants to take this object away from you, he also takes away your labour, which means that he takes away the power of your body. He therefore uses your body, which is incompatible with your right to possess your own body. See John Locke for a more elaborate exposition of this argument. If man owns his body, he also owns the power of his body and the objects in which this power is incorporated, to the extent that he has not stolen the objects. This can also be used as an argument in favor of some form of communism.

The right not to be a slave is the negative version of the right to possess your own body. Those who commit slavery (but also those who steal) act as if the bodies of other people are their property, a property that can be bought and sold. Considering other people as your property diminishes the value and dignity of these other people. Other people should not be considered as a means.